Case 1:19-cv-07200-JSR Document 70 Filed 06/17/20 Page 1 of 29

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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FAZE CLAN INC.
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:
Plaintiff,
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-v:
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TURNER TENNEY
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Defendant.
:
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19-cv-7200(JSR)
OPINION AND ORDER

JED S. RAKOFF, U.S.D.J.
Now before the Court are the parties’ cross-motions for
summary judgment in this action for breach of contract and
ancillary claims sounding in tortious interference and quasicontract. For the following reasons, plaintiff FaZe Clan’s
motion is granted in part and denied in part. Defendant Tenney’s
motions are denied in their entirety.
BACKGROUND
Defendant Turner Tenney, aka “TFue,” is a social media
celebrity and professional player of the video game Fortnite.
See Compl. ¶¶ 1-10, ECF No. 1 (Aug. 1, 2019). Plaintiff FaZe
Clan, in the words of one of its officers, is an “esports and
entertainment organization that competes in video game
tournaments and creates social media content.” Anderson Decl. ¶
2, ECF No. 47-3 (Mar. 5, 2020). FaZe Clan enters into contracts
with “gamers” such as Tenney and “invest[s] in and support[s]”
their careers, working to boost their profiles. Id. ¶ 4.

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In April 2018, Tenney signed such a contract, the “Gamer
Agreement,” with FaZe Clan. Gamer Agreement, ECF No. 51-1 (Mar.
6, 2020). That contract is the subject of this dispute. The
Gamer Agreement, in very brief summary, obligated Tenney to
“play[] on FaZe Clan’s team, participat[e] in training
activities, and participat[e] in various promotional, marketing
and social media activities,” all in exchange for FaZe Clan’s
obligation to provide him with “(1) a monthly fee, (2) a share
of income from cash prizes won at esports tournaments, and (3) a
share of revenue from certain merchandise, apparel, brand deals,
and other activities,” plus training and other support for his
career. FaZe Clan’s Statement Pursuant to Local Rule 56.1 ¶¶ 34, ECF No. 47-1 (Mar. 5, 2020) (hereinafter “FaZe Clan’s 56.1
Statement”).
About a year after FaZe Clan and Tenney entered into the
Gamer Agreement, the relationship between them soured. In May
2019, Tenney revealed to the public, via his social media
channels, that he wanted to end his affiliation with FaZe Clan
and start a rival esports organization. See, e.g., Ex. I to
Caixeiro Decl., ECF No. 47-4 (Mar. 5, 2020) (containing a screen
shot of a YouTube video posted by Tenney, with the description
written by Tenney declaring “I want to make it very clear that I
tried multiple times for multiple months to get out of this
contract. This is what had to be done.”).

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This public split gave rise to three lawsuits that comprise
the current dispute. In May 2019, around the time of Tenney’s
social media comments described above, Tenney filed two lawsuits
against FaZe Clan in California state tribunals, seeking to have
the Gamer Agreement declared void ab initio.1 First, Tenney filed
an action before the California Labor Commissioner (“CLC”),
arguing that the Gamer Agreement was void under California’s
Talent Agency Act (“TAA”), Cal. Lab. Code. § 1700.4 et seq.,
because, he alleged, FaZe Clan was operating as an unlicensed
talent agency. See Petition to Determine Controversy, Ex. D to
Caixeiro Decl. That same month, Tenney filed a second action in
California Superior Court, arguing that the Gamer Agreement was
void ab initio on other state law grounds, including
California’s prohibition of many agreements not to compete under
Cal. Bus. & Prof. Code § 16600 et seq. See Petition to Determine
Controversy, Ex. E to Caixeiro Decl.
In August 2019, FaZe Clan initiated the instant suit
against Tenney in this Court, asserting four causes of action
for breach of the Gamer Agreement, Compl. ¶¶ 37-53, and five

1

The relevance of California as a forum is that FaZe Clan has
its principal place of business in Los Angeles. Compl. ¶ 2. The
parties also entered into the Gamer Agreement in that state, and
Tenney lived in Los Angeles, at least intermittently, for
several months in late 2018 while he was affiliated with FaZe
Clan. Tenney’s Decl. in Oppo. to FaZe Clan’s Mot. for Forum Non
Conveniens, Ex. F to Caixeiro Decl. ¶¶ 2-15.

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related tort and quasi-contract claims.2 For its choice of the
New York forum, FaZe Clan relied on a provision of the Gamer
Agreement that required “[t]he Parties [to] submit exclusively
to the state or federal courts located in New York, NY for any
claim hereunder.” Gamer Agreement, Introduction: Miscellaneous.
As a result of this forum selection clause, FaZe Clan was able
to successfully move the California Superior Court to stay that
action and allow the parties’ claims and defenses to be
litigated as part of the instant action.3 Caixeiro Decl. ¶ 8.

2

Compl. ¶¶ 54-60 (Count Five: Misappropriation of Trade
Secrets); id. ¶¶ 61-67 (Count Six: Intentional Interference with
Contract); id. ¶¶ 68-73 (Count Seven: Tortious Interference with
Prospective Business Advantage); id. ¶¶ 74-78 (Count Eight:
Commercial Disparagement); id. ¶¶ 79-84 (Count Nine: Unjust
Enrichment).

3

As per California procedure, FaZe Clan’s motion to the
California Superior Court was styled as a motion to transfer for
forum non conveniens. Caixeiro Decl. ¶ 8. Tenney opposed that
motion on the ground that the forum selection clause was
unenforceable because the Gamer Agreement was void in its
entirety. Ex. F to Caixeiro Decl. But the California court
agreed with FaZe Clan, holding that the forum selection clause
was enforceable as a matter of California law, provided that
FaZe Clan would stipulate that California law would provide the
substantive rule of decision in the foreign forum for any of
Tenney’s non-waivable state statutory rights, including his
claim under Cal. Bus. & Prof. Code § 16600 et seq. See Opinion
of California Superior Court, Ex. G to Caixeiro Decl. at 4-6.
FaZe Clan then did so stipulate. Stipulation, Id. at Ex. 2.
The parties then raised similar arguments in October 2019,
shortly after FaZe Clan filed the instant lawsuit, when Tenney
moved this Court to stay or dismiss this action in favor of the
California proceedings under the abstention doctrine in Colorado
River Water Conservation District v. United States, 424 U.S. 800
(1976). FaZe Clan opposed this motion on the ground that the
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Unlike all the other claims and defenses, however, Tenney’s
TAA claim is not yet properly before this Court. Under
California law, the CLC has exclusive and non-waivable original
jurisdiction to adjudicate claims arising under the TAA. See
Cal. Lab. Code § 1700.44(a) (“In cases of controversy arising
under this chapter, the parties involved shall refer the matters
in dispute to the Labor Commissioner . . . .”). That claim,
accordingly, remains pending before the California tribunal; but
all other issues are now ripe for summary adjudication by this
Court.
The parties now move for summary judgment on various claims
and defenses. Because these motions primarily involve questions
of fact, the Court must grant summary judgment to the moving
party on only those issues where the party “shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Applying this standard, the Court grants FaZe Clan’s motions for
summary judgment only with respect to Tenney’s personal

mandatory forum selection clause should control, notwithstanding
the fact that Tenney filed his actions in California before FaZe
Clan filed the instant action in New York. After due
consideration of these arguments, the Court denied Tenney’s
motion, declining to reach the question of whether the forum
selection clause was enforceable, but rather holding that the
facts presented did not meet the very high standard for Colorado
River abstention. See Opinion and Order, ECF No. 27 (Nov. 6,
2019).

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jurisdiction and otherwise denies them. Further, the Court
denies Tenney’s motions for summary judgment in their entirety.
PLAINTIFF FAZE CLAN’S MOTIONS
Plaintiff FaZe Clan moves for partial summary judgment in
its favor. First, FaZe Clan moves the Court to enter judgment
denying three of Tenney’s affirmative defenses. Then, FaZe Clan
moves for summary judgment in its favor on one of its breach of
contract claims.

4

For the following reasons, these motions are

granted in part and denied in part.
I.

Tenney’s Personal Jurisdiction Defense
FaZe Clan first moves the Court to enter summary judgment

denying Tenney’s first affirmative defense, which argues that
this Court lacks personal jurisdiction over him. Tenney’s
Amended Answer at 9, ECF No. 32 (Dec. 13, 2019). This motion is
granted.
The sole basis for this Court’s personal jurisdiction over
Tenney is the Gamer Agreement; but that agreement not only
contains a mandatory forum selection clause in favor of New
York, but also, as part of that clause, provides that “each
Party consents to the jurisdiction” of the state and federal
courts there. Gamer Agreement, Introduction: Miscellaneous. FaZe

4

A March 20, 2020 stipulation between the parties rendered moot
some additional summary judgment motions, not discussed herein.
ECF No. 64.

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Clan appears to concede that Tenney, who is a resident of
Florida, would not otherwise be subject to general or specific
personal jurisdiction in New York. See FaZe Clan’s 56.1
Statement ¶ 15.
As discussed below, however, a forum selection clause
ordinarily is binding and enforceable. Tenney’s personal
jurisdiction defense, therefore, is that the entire Gamer
Agreement, including the forum selection clause, is void. The
Court rejects this argument. As an initial matter, with certain
exceptions noted below but not relevant here, New York law
governs the interpretation and enforcement of the Gamer
Agreement, see Gamer Agreement, Introduction: Miscellaneous. New
York follows the federal rule from M/S Bremen v. Zapata OffShore Co., 407 U.S. 1, 10 (1972) that “such clauses are prima
facie valid and should be enforced unless enforcement is shown
by the resisting party to be ‘unreasonable’ under the
circumstances.” See Brooke Grp. Ltd. v. JCH Syndicate 488, 87
N.Y.2d 530, 534 (N.Y. 1996); see also Sun Forest Corp. v.
Shvili, 152 F. Supp. 2d 367, 381 & n.22 (S.D.N.Y. 2001)
(explaining that both federal and New York law apply a “strong
policy” in favor of enforcing forum selection clauses).5

5

It is worth noting that, even if California law were to apply
to this question, the California Superior Court, hearing FaZe
Clan’s motion for forum non conveniens, has already determined
that the forum selection clause is enforceable under California
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The record contains no facts that would raise a triable
question as to whether the forum selection clause is
unenforceable under this standard. The only such fact even
suggested by Tenney is the bare assertion in his memorandum of
law that he was not “specifically aware of the forum selection
clause” or “focused on it at all,” Tenney’s Mem. of Law in Oppo.
to FaZe Clan’s Mot. for Partial Summary Judgment at 19, ECF No.
59 (Mar. 19, 2020). But even if true, that fact does not come
close to suggesting that the clause was unreasonable.6
Nevertheless, Tenney argues that any grant of summary
judgment in FaZe Clan’s favor would be premature because the CLC
action, in which decision remains pending, could potentially
invalidate the entire Gamer Agreement, including the forum
selection clause. This is unpersuasive. In situations like this,
courts applying New York law have determined the enforceability
of a forum selection clause separately from the validity of any
foreign-law defenses to contract enforcement. See Sun Forest
Corp., 152 F. Supp. 2d at 378-80 (holding that the New York

law. See Opinion at 8-9, Ex. G to Caixeiro Decl. Tenney raises
no arguments that this holding was incorrect.
6

Indeed, it is difficult even to accept Tenney’s assertion that
he was not aware of the forum selection clause, as FaZe Clan has
produced an original version of the Gamer Agreement that
contains Tenney’s initials on each page of the document.
Original Gamer Agreement, Ex. A to Anderson Decl. at 4-16.

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court had personal jurisdiction over a defendant based on a
forum selection clause, even while the defendant argued that the
entire contract, including the forum selection clause, was
unenforceable under Ontario law). Moreover, even if the CLC
eventually rules in Tenney’s favor on the TAA claim, there is no
risk that this Court’s personal jurisdiction ruling alone would
unduly prejudice Tenney, because Tenney could simply assert the
TAA as a defense at a later stage of this action. FaZe Clan’s
motion is accordingly granted.
II.

Tenney’s Defenses and Counterclaims Under California’s
Talent Agency Act

FaZe Clan next moves for summary judgment in its favor on
all of Tenney’s defenses and counterclaims arising from the TAA,
Cal. Lab. Code § 1700.4, et seq.7 This statute prohibits anyone
from “procuring, offering, promising, or attempting to procure
employment or engagements for an artist or artists,” unless they
have a license for doing so. Cal. Lab. Code. §§ 1700.4(a) &
1700.5. As explained above, the merits of Tenney’s TAA claims

7

Specifically, FaZe Clan moves for summary judgment denying:
Tenney’s first counterclaim (declaratory relief for violations
of the TAA), his second counterclaim (de novo review of the
California Labor Commissioner decision), his twenty-sixth
affirmative defense (FaZe Clan’s failure to exhaust
administrative remedies before the California Labor Commissioner
before filing this suit), and his twenty-seventh affirmative
defense (invalidity of the Gamer Agreement under the TAA). See
Tenney’s Amended Answer at 13, 20-24.

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are not properly before this Court. California law designates
the CLC as the original tribunal for all TAA claims; Tenney may
not waive his substantive and procedural rights under the TAA,
should any apply.8 See Cal. Lab. Code. § 1700.44. FaZe Clan now
moves for summary judgment, however, on the threshold ground
that all of its work on behalf of Tenney occurred outside of
California, and that there is accordingly no possibility that
the TAA will apply.
This motion raises the question of whether the CLC’s
original jurisdiction to adjudicate the merits of any TAA claim
also extends to a question of whether the TAA applies in the
first instance. The answer is, it does. In Styne v. Stevens, 26
Cal. 4th 42, 54 (Cal. 2001), the California Supreme Court
interpreted § 1700.44(a) not only to vest the CLC with mandatory
original jurisdiction over all disputes arising under the TAA,
id. (“Disputes must be heard by the Commissioner, and all
remedies before the Commissioner must be exhausted before the
parties can proceed to the superior court.”), but also,
importantly, to vest the CLC with

“exclusive jurisdiction to

determine his jurisdiction over issues colorably arising under
the [TAA].” Id. n.6 (emphasis supplied). The TAA, therefore,
“empowers [the CLC] alone to decide, in the first instance,

8

This is, accordingly, one area in this dispute where New York
law does not provide the rule of decision.
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whether the facts do bring the case within the Act.” Id. (citing
United States v. Superior Court, 19 Cal. 2d 189, 195 (Cal.
1941)). Styne firmly resolves this question in Tenney’s favor.
In any event, Tenney also raises a genuine dispute of
material fact as to whether FaZe Clan’s work on behalf of Tenney
occurred entirely outside of California. This Court denies FaZe
Clan’s motion on this independent ground as well.

Although it

is undisputed that Willis Wiggin, the account director who
procured sponsorship opportunities for Tenney, worked remotely
from his home in Bergen County, NJ, Wiggin Decl. ¶¶ 1, 3-4, ECF
No. 47-5 (Mar. 5, 2020), Tenney introduces evidence that Wiggin
collaborated with three Los Angeles-based FaZe Clan employees,
Richard Webb, Melissa Bowden, and Youssef Ali, on Tenney’s
account. Bowden Aff. ¶¶ 3-4, 7, ECF No. 61 (Mar. 20, 2020); Ali
Depo. Tr. at, e.g., 28:1-30:9, 46:6-21, 47:19-49:11, ECF No. 651 (Mar. 20, 2020). Such activities by FaZe Clan on Tenney’s
behalf are potentially regulated by the TAA because they
occurred in California. See Siegel v. Su, No. 2:17-cv-7203
(CAS), 2018 WL 1393984, at *7 (C.D. Cal. Mar. 16, 2018)
(“[U]nlicensed personal managers with sufficient contacts in
California are subject to the Labor Commissioner’s
jurisdiction.”).
III. Tenney’s Defenses and Counterclaims Under California’s
Business and Professions Code

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FaZe Clan next moves the Court for summary judgment denying
all of Tenney’s counterclaims and defenses under § 16600 et seq.
of California’s Business and Professions code.9 With certain
exceptions, these statutes void contractual agreements not to
compete. See id. § 16600 (“Except as provided in this chapter,
every contract by which anyone is restrained from engaging in a
lawful profession, trade, or business of any kind is to that
extent void.”). The Gamer Agreement contains three such
restrictions on Tenney’s right to compete with FaZe Clan, all
lasting for as long as the agreement remain in force.
Specifically, the Gamer Agreement provides, first, that Tenney
grants FaZe Clan an exclusive license to his name and likeness,
Gamer Agreement § 4(c); second, that Tenney agrees not to work
for a gaming organization other than FaZe Clan or endorse any
product not approved by FaZe Clan, id. § 5(a); and third, that
Tenney grants FaZe Clan a right to approve any third-party
request for his services, id. § 5(b). FaZe Clan’s second claim
for breach of contract asserts a violation of these provisions,
and Tenney raises § 16600 as a defense.

9

Under this heading, FaZe Clan moves for summary judgment on
Tenney’s fourth counterclaim (declaratory judgment for violation
of § 16600), Tenney’s fifth counterclaim (injunctive relief and
restitution), and Tenney’s tenth affirmative defense to Count
Two of FaZe Clan’s complaint, which alleges breach of the Gamer
Agreement for work with other organizations. See Tenney’s
Amended Answer at 10, 26-30.

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FaZe Clan now moves for summary judgment in its favor,
which the Court denies. By their plain terms, these restrictions
fall within the ambit of § 16600.10 FaZe Clan responds that case
law has interpreted this statute not to prohibit in-term
restraints in contracts between independent contractors, but the
Court reads the relevant case law otherwise. Although California
courts have read § 16600 not to bar in-term restraints in a
contract between employer and employee, e.g., Techno Lite, Inc.
v. Emcod, LLC, 44 Cal. App. 5th 462 (Cal. Ct. App. 2020);
Angelica Textile Servs., Inc. v. Park, 220 Cal. App. 4th 495
(Cal. Ct. App. 2013), these cases are inapposite because Tenney
was not FaZe Clan’s employee. Gamer Agreement, Introduction:
Relationship of Parties (“Each Party is an independent
contractor.”). Outside that context, state and federal courts
applying California law typically hold that § 16600 does bar interm agreements not to compete. E.g., Kelton v. Stravinski, 138
Cal. App. 4th 941 (Cal. Ct. App. 2006) (reviewing a non-compete

10

As with the TAA claims, California law provides the
substantive rule of decision here, notwithstanding the Gamer
Agreement’s choice of law provision. As described above, FaZe
Clan and Tenney stipulated to the California Superior Court that
“[t]o the extent Turner Tenney has rights under . . . Cal Bus. &
Prof. Code § 16600 et seq., California law applies to claims and
defenses asserting those rights, if those claims and defenses
are brought in New York.” Stipulation, Ex. G to Caixeiro Decl.
at Ex. 2. The Court reads this stipulation to have amended the
Gamer Agreement’s choice of law clause with respect to these
issues.

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provision in a contract between business partners). Indeed, in a
recent non-precedential decision, a panel of the Ninth Circuit
relied on Kelton to hold that § 16600 barred an in-term noncompete provision in a contract between two independent
contractors, a filmmaker and an actor. ITN Flix, LLC v.
Hinojosa, 686 Fed. App’x 441 (9th Cir. 2017) (memorandum).
Although not binding on this Court, ITN Flix is strong
persuasive authority. It is, first, consistent with the
reasoning of Techno Lite that the exception for employeremployee contracts relates to the unique attributes of the
employment relationship, i.e., the fact that “[d]uring the term
of employment, an employer is entitled to its employees’
undivided loyalty.” 44 Cal. App. 5th at 471 (internal quotation
marks omitted). Moreover, ITN Flix is consistent with the
general instruction of the California Supreme Court that
“section 16600 represents a strong public policy of the state
which should not be diluted by judicial fiat.” Edwards v. Arthur
Andersen LLP, 44 Cal. 4th 937, 949 (Cal. 2008).11 The Court

11

In response, FaZe Clan cites cases for the proposition that
employees and independent contractors are treated similarly for
purposes of § 16600. See Guardian Life Ins. Co. of Am., Inc. v.
Andraos, No. 07-cv-5732 (SJO) (FMO), 2009 WL 10675264, at *3
(C.D. Cal. Mar. 26, 2009); Leads Club, Inc. v. Peterson, No. 05cv-1717 (JMA) 2005 WL 8173326, at *11 (S.D. Cal. Dec. 1, 2005).
But all of these cases are, at best, inapposite, and more likely
harmful to FaZe Clan’s argument. None stands for the proposition
that non-compete provisions lasting for the term of the contract
are permitted in agreements between independent contractors;
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therefore declines to read California law in FaZe Clan’s favor
on this issue.
IV.

FaZe Clan’s Breach of Contract Claim

Lastly, FaZe Clan moves for summary judgment in its favor
on its first cause of action against Tenney, which alleges that
Tenney breached the Gamer Agreement by failing to share a
particular source of revenue with FaZe Clan.12 Compl. ¶¶ 37-40.
Specifically, Epic Games, the maker of Fortnite, manages a
program known as “Support-A-Creator,” through which prominent
Fortnite players, including Tenney, design certain products that
are then offered for sale within the Fortnite platform. When a

all, rather, establish that § 16600 prohibits such agreements,
both in the employer-employee and independent contractor
contexts, when they survive the term of the contract.
For that reason, the Court also denies FaZe Clan’s motion for
summary judgment with respect to Tenney’s counterclaims arising
from the single non-compete provision of the Gamer Agreement
that survives the termination of the contract, namely, FaZe
Clan’s right during the three months following the expiration of
the contract to match any offer that another Fortnite team makes
to Tenney. Gamer Agreement § 5(c). FaZe Clan’s only argument
here is that these counterclaims must be rejected because FaZe
Clan has never exercised this matching right. But insofar as
Tenney seeks only declaratory relief, he need not wait for FaZe
Clan to exercise such right, especially because, as further
detailed below, there is a genuine dispute of material fact as
to whether the Gamer Agreement is still in force.
12

Tenney, in effect, cross-moves on this issue through his
argument, discussed below, that the Gamer Agreement expired
before he received any of the revenue at issue here. As the
Court explains in a subsequent section, that argument is
unpersuasive.
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Fortnite player buys products associated with a particular
creator’s code, that creator receives a small percentage of
Epic’s revenue. One such product is a “skin,” akin to an outfit
worn by a player’s likeness within the game. Tenney designed
skins that were offered for sale within Fortnite, earning him
millions of dollars of revenue over the course of 2019. Aff. of
Tenney in Oppo. ¶ 17, ECF No. 62 (Mar. 20, 2020); Tenney Depo.
Tr, Ex. A to Caixeiro Decl. at 118:24-119:5; 225:4-226:12. He
declined to share any of this revenue with FaZe Clan. Id.
FaZe Clan now argues that this constituted breach of the
Gamer Agreement by Tenney, and FaZe Clan moves for summary
judgment in its favor. The Gamer Agreement requires Tenney to
share specific percentages of various categories of “salaries,
earnings, fees, royalties, bonuses, share of profits, and gifts,
etc. . . . generated in connection with Gamer’s Services,” Gamer
Agreement, Introduction: Compensation, including, as here
relevant, fifty percent of “In-Game Merchandise,” a term defined
only as “in-game/sticker.” Id. Through this motion, FaZe Clan
argues that the skins constitute such merchandise for the
purposes of the Gamer Agreement.
Under New York law, the elements of a breach of contract
claim are (i) the existence of a contract; (ii) performance of
the contract by one party; (iii) breach by the other party; and
(iv) damages suffered as a result of the breach. First Investors

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Corp. v. Liberty Mut. Ins. Co., 152 F.3d 162, 168 (2d Cir.1998).
The only element in dispute here is the first, that is, whether
the Gamer Agreement obligates Tenney to split this revenue with
FaZe Clan.
“The primary objective of a court in interpreting a
contract is to give effect to the intent of the parties as
revealed by the language of their agreement.” Compagnie
Financiere de CIC et de L’Union Europeenne v. Merrill Lynch, 232
F.3d 153, 157 (2d. Cir. 2000). But because the term “in-game
merchandise” is vague, and because its definition as “ingame/sticker” is totally unhelpful in discerning its meaning,
the Court must look to extraneous evidence of what the parties
intended.
The Court accordingly takes note of the overwhelming
evidence, introduced by Tenney, that the parties prior to this
litigation did not intend the term “in-game merchandise” to
encompass Tenney’s sales through the Support-A-Creator Program.
First, Tenney cites deposition testimony from Richard Bengtson,
aka “FaZe Banks,” a part-owner of FaZe Clan, that “we never had
collected the [Creator] code [revenue], and up to this point in
time, we had no intention” to do so. Bengston Depo. Tr. at
232:16-233:9, ECF No. 65-2 (Mar. 20, 2020). Second, and even
more persuasively, Tenney includes in the record a link to a
YouTube video, published by FaZe Clan on May 23, 2019, in which

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a representative of the organization expressly states that the
contract between the parties does not require Tenney to split
his Support-A-Creator revenue. See FaZe Clan Video, ECF No. 65-3
(Mar. 20, 2020). Beginning at timestamp 1:25 of the video, the
speaker states, “[w]e’ve seen a little miscommunication in terms
of community understanding about ‘in-game items’ and what that
might mean and what that applied to. Let us be very on-therecord right now: that has nothing to do with Support-A-Creator
codes. . . . Anybody who thinks that has anything to do with
dipping into the pockets of Support-A-Creator codes is sorely
wrong.” Id. At the same time, the video displays the written
message that “Tfue’s contract has nothing to do with Support-ACreator. Tfue was signed in April of 2018, while Epic announced
Support-A-Creator in October of 2018. In-game items refers to
the application of the FaZe logo or brand in a video game . . .
.” Id.
This, at the very least, is sufficient to raise a genuine
factual dispute as to whether the parties intended the Gamer
Agreement to cover the revenue stream at issue. Alternatively,
the YouTube video raises a genuine dispute as to whether FaZe
Clan is equitably estopped from collecting this revenue,
particularly since the video was published as part of a public
relations offensive to protect the organization’s image in light

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of its dispute with Tenney. FaZe Clan’s motion for summary
judgment on this breach of contract claim is accordingly denied.
DEFENDANT TENNEY’S MOTIONS
Defendant Turner Tenney moves for partial summary judgment
in his favor on FaZe Clan’s three breach of contract claims, as
well as summary judgment in his favor on FaZe Clan’s claims for
intentional interference with contract, intentional interference
with a prospective business advantage, and unjust enrichment.13
For the following reasons, these motions are denied.
I.

FaZe Clan’s Breach of Contract Claims
Tenney first moves for partial summary judgment in his

favor on all of FaZe Clan’s breach of contract claims. In
Tenney’s view, the Gamer Agreement expired on October 27, 2018,
leaving FaZe Clan with no actionable claim for any purported
breach occurring after that date, because FaZe Clan failed to
satisfy a condition precedent for the Agreement’s renewal.
By way of brief background, FaZe Clan and Tenney entered
into the Gamer Agreement on April 27, 2018. The introductory
section of the contract provided that its “term” would initially
be for six months, i.e., until October 27, 2018, subject to an
automatic, further extension of thirty-six months provided that

13

As above, certain additional motions were rendered moot by the
parties’ March 20 stipulation, dismissing certain claims,
counterclaims, and defenses. ECF No. 64.

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each side satisfied certain conditions precedent. Gamer
Agreement, Introduction: Term. As relevant here, one such
condition was that FaZe Clan must pay a monthly fee of $2,000 to
Tenney “on a timely basis,” defined elsewhere in the
introductory section to mean by the thirtieth day of each month
during the initial term of the agreement. Id.
It is undisputed that FaZe Clan did not make the $2,000
payment to Tenney on May 30, June 30, July 30, August 30, or
September 30 of 2018. See Defendant’s Rule 56.1 Statement of
Undisputed Facts ¶ 9, ECF No. 50 (Mar. 6, 2020); Response to
Defendant’s Rule 56.1 Statement of Undisputed Facts ¶ 9, ECF No.
58-1 (Mar. 19, 2020). On September 26, 2018, Tenney’s thencounsel sent FaZe Clan a letter providing notice that “FaZe Clan
has not met the required conditions to automatically extend the
Agreement for the 36-month Extended Term,” though not
specifically mentioning the monthly payments. Non-Renewal Letter
at 1, ECF No. 51-2 (Mar. 6, 2020). FaZe Clan responded to Tenney
by letter dated October 15, 2018. Response Letter at 1, Ex. A to
Trink Decl., ECF No. 58-4 (Mar. 19, 2020). Although the letter
states that Tenney’s claims are unfounded, id., on that same
day, as both sides acknowledge, FaZe Clan made five $2,000
payments to Tenney, corresponding to the monthly payments for
the months of May through September. Response to Defendant’s
Rule 56.1 Statement of Undisputed Facts ¶ 9. FaZe Clan then paid

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the $2,000 monthly fee for the month of October on November 20,
2018. Id.
In Tenney’s view, these payments were not “timely” because
they were not made by the 30th day of the corresponding month.
This leads Tenney to argue that the agreement expired on October
27, 2018, thus extinguishing any claim for breach of the Gamer
Agreement arising after that date.14 But the Court need not, and
does not, reach the question of whether the parties renewed the
Gamer Agreement as a matter of law. This is because, at the very
least, the evidence in the record raises a genuine dispute of
fact as to whether the Gamer Agreement remained in force as a
contract implied-in-fact. “Under New York law, the parties’
conduct after the expiration of a written contract, including
one party’s continued rendition of services, the other’s
acceptance of those services and payment in accordance with the
terms of the written contract can establish a contract implied
in fact with substantially the same terms and conditions as
embodied in the expired written contract.” Andrews v. Sotheby
Intern. Realty, Inc., 12-cv-8824 (RA), 2014 WL 626968, at *8

14

Tenney also argues in his motion papers that the Gamer
Agreement expired on October 27, 2018 for the independent reason
that FaZe Clan did not notify Tenney of its intention to renew,
as required by N.Y. Gen. Oblig. Law § 5-903. But the Court
declines to consider the merits of this defense, finding that
Tenney waived it by failing to plead it in his answer.
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(S.D.N.Y. Feb. 18, 2014) (internal quotation marks and
alterations omitted).
Here, notwithstanding Tenney’s position in this litigation,
the facts suggest that the parties continued to act until May
2019 as though the Gamer Agreement were in force. As explained
in a declaration from FaZe Clan’s CEO Lee Trink, for several
months after the contract’s purported expiration, Tenney
continued playing on FaZe Clan’s Fortnite team. Trink Decl. ¶
7a, ECF No. 58-4 (Mar. 19, 2020). And, with FaZe Clan’s
permission, Tenney continued to use FaZe Clans’ branding and
logo in videos and social media posts. Id. ¶ 7e (citing
corroborating screen shots dated as late as April 2019). FaZe
Clan, for its part, continued promoting Tenney’s social media
profiles and publicizing his victories at video game
tournaments, id. ¶¶ 7b & 7c, and continued providing services to
Tenney including social media coaching and travel planning, id.
¶¶ 7f-7h. Moreover, other FaZe Clan “gamers” appeared in videos
that Tenney posted online. Id. ¶ 7d. FaZe Clan also continued
paying the monthly fees required by the Gamer Agreement to
Tenney, and Tenney accepted this money. Id. ¶¶ 6, 7j (citing a
bank receipt showing a $2,000 transfer dated January 21, 2020).
It was not until the spring of 2019, roughly six months after
the purported expiration of the Gamer Agreement, that Tenney
publicly announced to his social media followers that he was no

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longer affiliated with FaZe Clan. Tenney Depo. Tr. at 117:23118:3, Ex. A to Caixeiro Opp. Decl., ECF No. 58-3 (Mar. 19,
2020).
All of this is more than sufficient to raise a genuine
dispute of fact as to whether the Gamer Agreement remained in
force as a contract implied-in-fact.
Tenney advances two further responses, but neither
persuades the Court. First, Tenney argues that, even if the
parties had entered into a new implied-in-fact contract, it
would not necessarily have the same terms as the Gamer
Agreement. See New York Tel. Co. v. Jamestown Tel. Corp., 282
N.Y. 365, 369-71 (N.Y. 1940) (holding that an implied-in-fact
contract arising after the termination of a written contract
need not have the same terms as the original contract). But New
York Tel. Co. is distinguishable on the ground that, there, the
parties’ intent to terminate the original contract was much
clearer than it was here, where all parties continued to act as
though the original agreement were in effect for several months
after its purported termination. Moreover, an inquiry into the
terms of any contract implied-in-fact is premature, being
relevant only to damages and not to liability.
Second, Tenney cites § 6(e) of the Gamer Agreement, a
paragraph entitled “Obligations Upon Termination,” which states,
among other terms, that the “Company’s use of Gamer’s Services

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after termination of the Agreement shall not be deemed a
reinstatement or renewal of the Agreement without the written
agreement of the parties hereto.” In Tenney’s view, this
language precludes the Court from implying a contract in fact
based on the parties’ conduct after the purported termination of
the Agreement. The Court, however, does not read this language
so broadly. This provision may demonstrate an intent by the
parties that a renewal of the agreement not be implied based on
limited post-termination engagements between the parties, but
the facts here demonstrate a far more extensive relationship
between FaZe Clan and Tenney after October 2018, far surpassing
what might be deemed merely “Company’s use of Gamer’s Services.”
Where, as here, the parties carried on as though the original
agreement were still fully in force, the language of § 6(e) does
not preclude an implied-in-fact renewal of the contract.
II.

FaZe Clan’s Non-Contract Claims

Finally, Tenney moves the Court for a grant of summary
judgment dismissing three of FaZe Clan’s non-contract causes of
action.
a. Intentional Interference with Contract
FaZe Clan’s sixth cause of action accuses Tenney of
intentionally interfering with contracts between FaZe Clan and
eight “brand deal partners.” Compl. ¶¶ 63-64. Specifically, FaZe
Clan alleges that Tenney induced these brand partners to breach

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their contracts with FaZe Clan and instead to do business
directly with Tenney as part of his plan to create an
independent Fortnite team. Compl. ¶ 64.
The elements of a tortious interference claim in New York
are “(1) the existence of a contract between plaintiff and a
third party; (2) defendant’s knowledge of the contract; (3)
defendant’s intentional inducement of the third party to breach
or otherwise render performance impossible; and (4) damages to
the plaintiff.” Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94
(1993). Tenney now moves for summary judgment, arguing that FaZe
Clan has introduced no evidence as to the second and third
elements. Tenney further relies on his own affidavit, dated
March 5, 2020, in which he asserts that he was unaware of seven
of FaZe Clan’s eight brand partner contracts, and that he did
not induce any of them to breach their contracts with FaZe Clan.
Tenney Decl. ¶¶ 18-22, ECF No. 51 (Mar. 6, 2020).
The Court disagrees. As to Tenney’s knowledge of the brand
partner contracts, Tenney admitted in his deposition to knowing
about “deals” between FaZe Clan and two of the brand partners,
Wix and Digital Storm. Tenney Depo Tr. at 187:17-188:2; 193:1114, Ex. A to Caixeiro Opp. Decl., ECF No. 58-3 (Mar. 19, 2020).
Tenney’s knowledge of these “deals” in general raises an
inference that he was aware of the specific contracts. Moreover,
FaZe Clan’s Fortnite players wore jerseys with Nissan’s logo on

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them, according to a declaration from FaZe Clan’s CEO. Trink
Decl. ¶ 12. This is also sufficient to raise a genuine issue of
fact as to whether Tenney was aware of the contract with Nissan.
As to Tenney’s intentional inducement of the brand
partners’ breaches, the Trink Declaration explains that FaZe
Clan lost its deal with brand partner Digital Storm when Tenney
“went to Digital Storm himself to negotiate [] his own, separate
sponsorship deal.” Trink Decl. ¶ 10. The same declaration
provides further corroborating evidence for FaZe Clan’s claim,
including that FaZe Clan’s brand partnership with Wix was
delayed after Tenney reneged on an earlier promise to
participate. Id. ¶ 11. Additionally, Tenney’s public statements
against FaZe Clan in May 2019 had a materially negative impact
on FaZe Clan’s ability to maintain its relationships with these
brand partners, which suggests, in light of this context, that
Tenney may have intended for his public statements to induce the
brand partners to breach their contracts with FaZe Clan. See id.
¶¶ 9-17. FaZe Clan’s claim for intentional interference with
contract may therefore proceed to trial.
b. Intentional Interference with a Prospective Business
Advantage
FaZe Clan’s seventh cause of action is that Tenney
intentionally interfered with the organization’s prospective
business advantages in the form of additional brand partnerships

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that FaZe Clan was negotiating at the time of its public split
with Tenney. Compl. ¶¶ 68-70. In support of this claim, FaZe
Clan alleges that Tenney intentionally undermined FaZe Clan’s
brand partnership deal with the mobile payments company Venmo,
as well as other potential deals. Trink Decl. ¶¶ 14-15. The four
elements of this cause of action are “(1) a prospective
contractual relation or business with a third party; (2)
defendants’ interference with that relation; (3) [that]
defendant acted with the sole purpose of harming plaintiff or
used dishonest, unfair or improper means; and (4) injury to the
plaintiff.” G–I Holdings, Inc. v. Baron & Budd, 179 F. Supp. 2d
233, 253-54 (S.D.N.Y. 2001).
The issues here are much the same as those involved in the
intentional interference with contract claim. Tenney again
argues that FaZe Clan has not produced evidence that Tenney knew
of and interfered with FaZe Clan’s prospective brand
partnerships, especially because this claim requires “a higher
degree of interference” than does a claim for intentional
interference with contract, G-I Holdings, 179 F. Supp. 2d at
254. But for similar reasons as above, the Court finds that FaZe
Clan raises a sufficient factual dispute. FaZe Clan’s strongest
evidence is, again, the declaration of its CEO, Lee Trink. As to
the prospective deal relevant to Count Seven, Trink states that
FaZe Clan was in the process of negotiating a deal with Venmo

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that was scheduled to launch around May 2019, but which fell
through due to Tenney’s negative public statements about FaZe
Clan. Trink Decl. ¶ 14. Tenney again relies on his assertion in
his own affidavit that he was not aware of any prospective
business relationships between FaZe Clan and other brand
partners, and that he did not contact or induce any such
partners to terminate their relationships with FaZe Clan in
favor of doing business directly with him. Tenney Decl. ¶¶ 2325. But because a juror might arguably find FaZe Clan’s evidence
to be more credible, owing to Trink’s first-hand involvement in
the relevant negotiations, the Court finds that FaZe Clan has
raised a genuine dispute of material fact.
c. Unjust Enrichment
Finally, FaZe Clan’s ninth cause of action, pled in the
alternative to its breach of contract claims, is for unjust
enrichment. Tenney moves for conditional summary judgment in his
favor, arguing that, in the event that the CLC declares the
Gamer Agreement to be void under the TAA, such a holding would
also bar FaZe Clan from recovering under a theory of unjust
enrichment. Tenny relies on a footnote in Yoo v. Robi, 126 Cal.
App. 4th 1089, 1104 n.30 (Cal. Ct. App. 2005), which states that
the policy rationale of the TAA is so strong that the statute
forbids unlicensed talent agents from recovering from their
clients either in contract or in quasi-contract.

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The Court disagrees with this rationale. The California
Supreme Court in Marathon Entertainment, Inc. v. Blasi, 42 Cal.
4th 974 (Cal. 2008) appears to have read narrowly this point in
Yoo, finding that the TAA permits partial recovery for an
unlicensed talent agency operating in violation of the statute.
Id. at 995-96. The reasoning of Marathon suggests, therefore,
that this Court could award some recovery to FaZe Clan under a
theory of unjust enrichment even if the Gamer Agreement is void
under the TAA, and provided that FaZe Clan does not otherwise
succeed on its breach of contract claims. Tenney’s motion for
summary judgment on this claim is accordingly denied.
CONCLUSION
For the foregoing reasons, FaZe Clan’s motions for summary
judgment are granted in part and denied in part. Tenney’s
motions are denied in their entirety. The parties are directed
to jointly call the Court by no later than Wednesday, June 24 to
set a trial date.
SO ORDERED.
Dated: New York, NY
June 17, 2020

______________________
JED S. RAKOFF, U.S.D.J.

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